This blog is intended to explain the Domestic Violence Restraining Order process from the perspective of the Defendant (the one who was served with a Temporary restraining Order).
Part 2 of this series explains what to do from the Plaintiff’s perspective (the one who filed the Temporary Restraining Order). If you are Plaintiff, or you want to see how the process works from that perspective, read Part 2.
So you’ve been served with a Temporary Restraining Order. Now what?
You were likely shocked and upset when you were served by the police with a Temporary Restraining Order (TRO) and maybe even wondering how this could happen without your participation. The reason for that is because the laws in New Jersey view TROs as an emergency situation that requires immediate action to protect someone’s safety and protect them from harm.
You may be thinking, “What harm?” When someone applies for a TRO, all they have to do is explain the alleged domestic violence event and the judge decides if there should be a TRO. It’s important to be aware that “Domestic Violence” isn’t just physical abuse, as some people think. It can also be harassment, stalking, criminal mischief and a number of other offenses.
Judges are generally very liberal in granting TROs to prevent any potential continued domestic violence. There are many people who are true victims of domestic violence and require the protection of a TRO. Judges must assume that every application for a TRO that comes before them is based upon credible testimony by the Plaintiff. Sometimes it is better to be safe than sorry. Remember that the information supplied to the judge is based solely upon the information supplied by the person who is applying for it. The judge doesn’t get to hear your side of the story until later.
That’s not where the process ends. The next phase is where you get to be heard. It’s called a “Temporary” Restraining Order for just that reason: It’s temporary – unless and until the Court decides it’s permanent – in which case it becomes a Final Restraining Order (FRO).
Under normal circumstances, the Court is required to schedule a hearing to take place ten (10) days after the Temporary Restraining Order is entered so that you, the Defendant, have an opportunity to tell your side of the story. Although the hearing is supposed to take place within 10 days, the Courts are not functioning as usual. In the current Coronavirus climate we are living in (as of this writing on April 1, 2020) FRO hearings will not be heard until May 1, 2020, at the very earliest. If social distancing continues beyond April 30, 2020, which is the current projected date, that will be postponed even further.
What You Can Expect at the Temporary Restraining Order Hearing
As we explain in Part 2 of this series, the Plaintiff will present his or her case first. He or she will testify as to the allegations in the Complaint (i.e. the original temporary restraining order) and can present any other evidence to prove his or her case. The Plaintiff has to do this by a “preponderance of the evidence,” which means that it’s more likely than not that things happened the way the Plaintiff says they happened.
You will have “notice” of the things the Plaintiff is going to say happened because it should be explained (although usually not in a great amount of detail) in the Complaint/Temporary Restraining Order. If the Plaintiff attempts to bring up any events that he or she did not reference previously in the Complaint/Temporary Restraining Order, then you should object, since the Plaintiff is not permitted to bring up any other events and is confined to the “four corners” of the Complaint. This also applies to the prior history of domestic violence that may also be referenced in the Complaint.
It is very important that you as the Defendant attempt to limit the Plaintiff’s testimony and evidence as much as possible. Here is one such way to do it.
Once the Plaintiff has testified, you can “cross examine” him or her, which basically means that you can ask questions about the testimony and any other evidence to try discredit them or disprove the way they claim the events happened. This also means that you can present any evidence such as text messages, letters, phone logs, photos, testimony from any witnesses, etc. that may be useful in discrediting them and ask them questions about it.
You should be prepared with an outline of your questions before you go to Court, but also be ready to ask any other logical follow-up questions that may be important once you have actually heard his or her testimony that day in Court. This same Q & A will apply to any other witnesses that may be present that day to testify on the Plaintiff’s behalf. You may not know who those witnesses are going to be in advance of the trial.
Another tip is that any witnesses present that day in the courtroom should be sequestered by the Court, which means they should not be allowed to sit in the courtroom order and listen to the Plaintiff’s testimony before they give their own testimony. You have to ask for that. The judge doesn’t always do that automatically.
Once the Plaintiff’s case is done, an attorney on your behalf would likely make a verbal motion for the Court to dismiss the Plaintiff’s case on the basis that he or she has not satisfied his/her legal burden in demonstrating that domestic violence has occurred. You certainly should not be afraid to do that, too, if you are representing yourself; however, sometimes these can be somewhat complex legal arguments. We would recommend, at the very least, that you consult with an attorney for some guidance on how to do this if you intend to do it yourself. Preparation is very important.
If the motion to dismiss is denied (and in many cases, they are), then you will then be instructed by the judge that you can present your defense. That means that you should testify and explain your version of the events.
This is your opportunity to either deny the allegations and/or explain that things did not exactly happen the way the Plaintiff says they did. This is also your opportunity to present any other evidence such as call logs, photos, text messages, or any physical evidence that supports your testimony and/or refutes the Plaintiff’s testimony. These must be presented in accordance with the Rules of Evidence so if you plan to represent yourself, this is another reason why it would be prudent to consult with an attorney to go over any potential evidentiary objections so you can make sure you have the right evidence available to present to the Court.
As you can see, this is a fairly technical proceeding with a very specific purpose: to refute the Plaintiff’s allegations and prove either that that things did not happen the way the Plaintiff says they did and/or that, even if they did, the events did not rise to the level of domestic violence sufficient to enter a permanent Final Restraining Order.
This is a very simplified explanation of what will happen at the final hearing. You should review Part 2 of this series for additional information. However, this information cannot substitute legal advice as to the specific circumstances of your case.
We strongly recommend that if you are a Defendant in a domestic violence hearing, that you be represented by counsel who routinely engages in domestic violence proceedings. The law is nuanced and you need to make sure that you know all of the tricks of the trade to properly plan and execute your legal strategy.
Contact us for a consultation if you would like to know more.